Dinesh Chandra Pandey vs Malti Dubey

Rajendra Menon, J.—In this appeal under section 96 of the Code of Civil Procedure, appellant/plaintiff has called in question tenability of the judgment and decree dated 24.4.2004, passed by IInd Additional District Judge, Jabalpur in Civil Suit No. 5-B/2003, whereby a suit filed against the respondent/defendant for recovery of Rs. 1,30,000/- has been dismissed.

According to the plaintiff, he was working as Deputy Chief Engineer in Hindalco Industry Limited, Renukoot, Janpad Sonbhadra, in the State of Uttar Pradesh. He retired in July 1999. His elder brother was a permanent resident at Jabalpur and, therefore, after his retirement plaintiff also came to Jabalpur in the year 1999 and wanted to settle down in Jabalpur and start some business. For this purpose, he was in the look out of a suitable house, to be purchased. It was said that initially the plaintiff started staying with his brother and was looking for a suitable residential house when he came into contract with one Ravi Shankar Dubey, husband of the defendant. It is said that the defendant and her husband became friendly with the plaintiff and started helping him in searching for a suitable house. It is the case of the plaintiff that Shri Ravi Shankar Dubey allured and convinced him that House No. 1023/1, Shastri Nagar, Garha, Jabalpur belonging to the defendant was a good house and the plaintiff was offered the said house at a price of Rs. 3 Lacs. It is stated that the plaintiff started bargaining, as the amount of Rs. 3 Lacs was on the higher side, but ultimately price of Rs. 2,75,000/- was agreed to, which included not only cost of the house but also the cost for payment of stamp duty, typing, registration etc. It is stated that after a decision was taken to purchase the house on such consideration, the defendant told the plaintiff that she was in need of more money for investment in her business and she demanded a sum of Rs. 1 Lac and offered to pay interest @ 2% and undertook the repay the loan within a year. It is stated that this amount was advanced by cheque. Subsequently, after the house was purchased when the plaintiff found that there was no proper water connection in the house, the plaintiff is said to have paid a sum of Rs. 30,000/- again by cheque for the purpose of boring, but nothing was done and the boring was also not undertaken. It is also stated that the plaintiff paid a sum of Rs. 2,75,000/- by cheque on 28.4.2000 for purchase of the house and for the same, a registered sale deed was executed on 4.5.2000.

Inter alia contending that amount of Rs. 1 Lac loaned to the defendant and the amount of Rs. 30,000/- paid for boring was not done, a demand was made by the plaintiff for return of the same and when the same was not returned the suit in question was filed. The respondent defendant came out with a case that the entire amount of Rs. 1,30,000/- was paid as cost towards construction, the amount was not paid in the individual name of defendant Smt. Malti Dubey, but was paid to M/s. Malti Construction to avoid paying additional stamp duty and other expenses, this amount was not shown in the sale deed and by contending that it was only a consideration for purchase of the house, respondent resists the claim. The suit in question having been rejected by the court below, this appeal under section 96 of the Code of Civil Procedure.

Shri Pranay Verma, learned counsel for the appellant, took me through the statement of the witnesses, the material available on record, the sale-deed in question and tried to argue that once it is clear from the sale deed that the entire amount of consideration for the house amounting to Rs. 2,75,000/- was paid and nothing further was payable for the purpose of sale consideration, the Court should have recorded a finding that the amount of Rs. 1,30,000/- was paid as stated by the plaintiff and a decree for the same should have been passed. Learned counsel further stated that the court below held that the suit itself was not maintainable on the ground that payment was made to M/s. Malti Construction and M/s. Malti Construction was not impleaded as a party. It was stated that M/s. Malti Construction was a proprietary concern owned by the defendant and once the defendant was a party in the suit, the finding that the suit is not maintainable without impleading the proprietary concern was a perverse finding. Finally, it was submitted that once payment of Rs. 1,30,000/- by cheque was proved, the suit should have been decreed.

However, Shri Anurag Tiwari refuted the aforesaid, took me through the statement of witnesses available on record and argued that plaintiff''s own showing goes to show that he came into contact with the defendant and her husband for the purpose of purchase of a house and, therefore, the finding that the entire amount was paid for purchasing the house is a reasonable finding based on the facts and circumstances and no interference is to be made.

Apart from the factual assertions as is indicated hereinabove, records indicate that in support of his claim plaintiff examined himself as PW/1 and also examined Ganesh Datt Pandey - his brother as PW/2 to say that the amount of Rs. 1,30,000/- was loaned to the respondent. Respondent Malti Dubey examined herself as DW/1. She also examined her husband Shri Ravi Shankar Dubey as DW/2; and, one Munnalal Dubey as DW/3 to say that the amount was paid towards the sale transaction. That apart, certain documents namely the cheque books and cheque leaves, the sale-deed and the notices issued were also exhibited. Based on the pleadings of the parties, learned court below framed the following four issues:

"(i) Whether the plaintiff has given to the defendant on 4.5.2000 a sum of Rs. 1 Lac through cheque as loan?

(ii) Whether the plaintiff has given to the defendant a sum of Rs. 30,000/- for the purpose of boring?

(iii) Whether the said amount of Rs. 1,30,000/- was advanced as loan with interest @ 2% per annum?

(iv) Relief and costs."

All the issues have been answered against the plaintiff and it is held that the amount was nothing but a part of sale consideration, it was paid in a different form to avoid payment of stamp duty and registration charges and finding it to be part of a sale transaction, the suit has been dismissed.

I have heard learned counsel for the parties at length and perused the records.

In his statement PW/1 Dinesh Chandra Pandey reiterates the facts as have been stated by him in the body of the plaint. He however says that the amount of sale consideration for the house was Rs. 2,75,000/-. The sale deed is executed on 4.5.2000 and admits to registration of the same. He further states that the amount of Rs. 51,000/- was the registration cost. He says that the sale transaction was finalized on 28.4.2000. However, he admits that in the sale deed it is not mentioned that the expenses for registration is Rs. 51,000/- and certain maintenance cost of Rs. 24,000/- was also not mentioned in the sale deed. He also submits that on 28.4.2000 itself it was decided that the registration of the document shall be done on 4.5.2000. Various suggestions were made to him and he admits in paragraph 15 of his cross-examination that the cost of the plot was Rs. 10-15 per square feet, at the time of registration, and he denies the suggestion that the cost of the plot was Rs. 20-25 per square feet at that point of time. He admits that the built up area of the property is 975 square feet. PW/2 Shri Ganesh Datt Pandey is the elder brother of the plaintiff and he only testifies with regard to purchase of the house by registered sale-deed on 4.5.2000 and a general statement with regard to advancement of loan. DW/1 Smt. Malti Dubey comes out with a case that no loan was granted to her, the amount of Rs. 1 Lac was paid to meet the expenses of registration, stamp duty and similar is the statement made by her husband DW/2 Shri Ravi Shankar Dubey. DW/3 Munnalal Dubey is a witness to the entire transaction and he testifies that the house was decided to be sold for a consideration of Rs.4,05,000/- and the amount was paid by cheque.

The only question that warrants consideration is as to whether the transaction in question that is payment of Rs. 1,30,000/- was towards discharge of loan and payment towards boring or it was a part of the amount paid for sale of the house?

The sale deed is registered on 4.5.2000 and surprisingly the counter-foil of the cheques for Rs.1,30,000/- is also dated 4.5.2000. Cheque No. 270143 dated 4.5.2000 is issued in the name of M/s. Malti Construction, Shastri Nagar, Jabalpur for a sum of Rs. 1 Lac. Similarly, Cheque No. 270144 dated 4.5.2000 is issued in favour of Smt. Malti Dubey for Rs. 30,000/-. It is surprising that the sale deed is also executed on the same day and the amount of Rs. 1,30,000/- is also paid on the same day i.e... 4.5.2000. That apart, the cheque for Rs. 1 Lac is in the name of M/s. Malti Construction. According to plaintiff''s own story, he came to Jabalpur after his retirement and was in the lookout for a house to be purchased. He also says that came into contract with the husband of the defendant in this regard. There is nothing available on record nor has the plaintiff discharged the burden of proving that the amounts of Rs.1 Lac and Rs. 30,000/- paid on 4.5.2000 was for any other purpose than the purpose of paying the consideration for transfer of property. The plaintiff admits that the sale deed was executed for Rs. 2,75,000/- and over and above there was registration fees of more than Rs. 51,000/- and certain other incidental expenses of more than Rs. 24,000/-. Taking note of the totality of the circumstances, the approximate value of the property in the area, the learned court below has recorded a finding that the plaintiff having failed to prove and discharge the burden to show that the amount was paid towards payment of loan or boring and when the circumstances indicate that it was paid on the same day when the registration of the document took place, the inference drawn that the amount was paid towards sale consideration is nothing but a reasonable finding arrived at on due appreciation of the material available on record, particularly when the plaintiff has failed to lead any evidence to show that the amount of Rs. 1,30,000/- was paid as loan transaction. The very fact of the entire amount and the entire transaction having taken place on the same day i.e... 4.5.2000 is an indication of the fact that the entire transaction was towards payment of sale consideration for purchase of the house and in so holding I am of the considered view that the trial court has not committed any error warranting reconsideration.

As far as the question of M/s. Malti Construction being not impleaded as a party is concerned, the said finding of the trial court is also a reasonable finding. Admittedly, the cheque in question for Rs. 1 Lac is paid in the name of M/s. Malti Construction. May be M/s. Malti Construction is a proprietary concern owned by the defendant, but such an averment has to be made and established and in the absence of the same being done by impleading respondent Malti Dubey as the sole proprietor of M/s. Malti Construction, the suit itself for recovery of Rs. 1 Lac was not maintainable, because the amount was paid to M/s. Malti Construction. Under such circumstances, I see no reason to interfere into a reasonable finding recorded by the court below.

The appeal is accordingly dismissed.